Part 2. Important Legislative Initiatives
The first section of the chapter discussed current policy issues, such as encroachment
and ecosystem management. This section deals with the more important legislative
initiatives during the past decade relating directly to the management of
natural resources on military lands or waters, or to the impacts of military operations
on natural resources on public or private lands or waters. While many of
these initiatives were requested by the DoD, others were instigated by the Congress
without specific requests from the DoD.
Sikes Act Improvement Act (1997)
The Sikes Act
The Sikes Act is named after Rep.
Robert L.F. Sikes, Democrat representing
Northwest Florida, home
to Eglin AFB and other major DoD
installations. It was enacted in
1960 "to promote effectual planning,
and coordination of wildlife, fish,
and game conservation and rehabilitation
in military reservations."
Enacted in 1960, the Sikes Act provides the authority, and defines the responsibilities,
for the management of natural resources on military lands. In its original
form the Sikes Act mainly addressed public access to military lands for hunting
and fishing activities. Over the years the act has been significantly strengthened,
and its scope expanded, to the point that it now represents a comprehensive law
mandating the conservation of all aspects of natural resources on military lands.
The most significant amendment, known as the Sikes Act Improvement Act of
1997, was enacted with the strong support of the U.S. Fish and Wildlife Service
and the Association of Fish and Wildlife Agencies (representing state fish and
game agencies). Major provisions of the Sikes Act Improvement Act of 1997 include:
- Mandatory requirement for all DoD installations with natural resources to prepare
a comprehensive Integrated Natural ResourcesManagement Plan (INRMP).
- The INRMP must be prepared in cooperation with the U.S. Fish and Wildlife
Service and the pertinent state fish and game agency.
- Public comment is required on the INRMP.
- The INRMP must be implemented.
Subsequent modifications to the Sikes Act, mainly through provisions specified
in the Defense Authorization Act, have addressed a number of issues, ranging
from providing disabled veterans with access to hunting and fishing programs on
military, to control of invasive species, and compliance with the Endangered
Species Act. The more important of these provisions are discussed below.
The vermillion flycatcher (top) at Fort
Huachuca, Arizona, and the yellow-throated
warbler (bottom) at NAS Patuxent River, Maryland.
Protection of migratory birds is a major
objective of military natural resources programs.
(Photos: Arlene Ripley)
Migratory Bird Treaty Act
Although the DoD has a long history of positive contributions to the conservation
of migratory birds (http://www.DoDpif.org/), the Navy was sued successfully
regarding the "unintentional take" of birds at a bombing range in the Western
Pacific on the island of Farallon de Medinilla. The Migratory Bird Treaty Act has
many provisions for the regulated "intentional taking" of migratory birds. Examples
include waterfowl hunting, depredation of nuisance species, or birds that
pose a safety hazard. However, the act has no provision for the "unintentional
taking" of migratory birds. That is, if birds are taken by accident or in conjunction
with some activity (e.g. military operations) whose primary purpose is not
the taking of birds, the law has no provision to issue a permit for such activities.
Hence, there would be no legal way to conduct military operations if any birds
were taken in the process. To address this problem and the legal decision against
it at Farallon de Medinilla, the Navy sought and achieved legislative relief regarding
"unintentional take" during military readiness operations in the FY 03
Defense Authorization Act. A Final Rule reflecting this was published on 28 February
2007 in the Federal Register.
This change allows the military to obtain permits for the "unintentional take"
of a migratory bird if it is in support of a military readiness operation. The specific
details of this new procedure are spelled out in a memorandum of understanding
between the DoD and the U.S. Fish and Wildlife Service (USFWS), as required by
E.O. 13186, Migratory Birds that was signed on 31 July 2006. These procedures
contain significant safeguards to ensure that the taking of birds is minimized when
the new rule is used and that conservation measures are employed to compensate
for the losses that may occur (https://www.denix.osd.mil).
On 3 April 2006, the Assistant Deputy Under Secretary of Defense issued a
memorandum providing specific guidance on the implementation of the MOU
Endangered Species Act
Long considered a federal agency leader in the conservation of endangered
species, the DoD has implemented a comprehensive program to ensure compliance
with the Endangered Species Act. For that reason, there was considerable
concern when the U.S. Fish and Wildlife Service began a court-ordered effort to
designate critical habitat for all federally listed species. The concern in the DoD
with the new USFWS effort was that declaring critical habitat would add a new
administrative burden on military installations with no added benefit to listed
species. The DoD argued that it was already providing extensive protection to
listed species through its formal consultations with the USFWS and the conservation
measures specified in installation INRMPs. It therefore argued that designating
military land as critical habitat would only add an additional compliance and
consultation burden on the DoD while not enhancing protection for listed species.
The DoD achieved relief from the provision in the FY 2004 Defense Authorization
Act (Section 318) (see http://www.DoD.mil/DoDgc/olc/docs/2004NDAA.pdf).
This legislation granted the USFWS specific authority to exempt DoD lands from
the designation of critical habitat provided:
- A comprehensive and approved INRMP was in effect.
- The INRMP specifically addressed the conservation of the species under consideration.
- The INRMP was implemented.
Marine Mammal Protection Act
Under the Marine Mammal Protection
Act, "harassment" is one component
of a larger prohibition
known as a “taking” and consists
of two levels:
Level A Harassment: Action with
the potential to injure marine
mammals or marine mammal stock
in the wild (e.g. ship strike, underwater
Level B Harassment: Action with
the potential to disturb marine
mammals or marine mammal stock
in the wild by causing disruption
of behavioral patterns. (e.g. sonar,
The Navy actively sought and achieved through the 2004 Defense Authorization
Act (Section 319), a clarification of the definition of "take" under the Marine
Mammal Protection Act. Specifically, this provision modified the meaning of Level
B Harassment of a marine mammal when caused by military activities. The net
result of this change was to increase slightly the harassment threshold and thereby
reduce the number of occasions in which the military services would need to consult
the National Marine Fisheries Service regarding their testing or training operations
The FY 2004 Defense Authorization Act (Section 311-C) also contained legislation
establishing a pilot program for the control of invasive species on military
lands in Guam. This effort is mainly focused on the control of the brown tree
snake and enhances earlier legislative efforts to address this serious issue.8
Security forces at Vandenberg AFB, California,
use horses for patrols in sensitive habitats
and rough terrain. (Photo courtesy of
U.S. Air Force)
Incompatible Land Use
Some of the most significant recent environmental and readiness legislation concerns
efforts to fund conservation easements adjacent to military lands. As discussed
above, the DoD and the services worked with Congress to define a statutory
authority to address encroachment. The result was that Congress, in Section
2811 of the National Defense Authorization Act for FY 2003, provided the military with an important new tool for using partnerships to prevent incompatible
land use. This new authority allowed DoD to enter into agreements with private
conservation organizations or state and local governments to cost-share acquisition
of land or interests in land to preserve valuable habitat and limit incompatible
In FY 2005, Congress appropriated $12.5 million to the Deputy Under Secretary
of Defense (Installations & Environment) to allocate funds to military service
conservation buffer projects at seven DoD installations. In fy 2006, Congress
appropriated $37 million, which was applied towards projects at 22 installations.
Since then, the program has continued to grow in scope and funding.
The authority in 10 USC 2684A represents a significant step forward in encouraging
open communication and collaboration between the military and a wide
array of stakeholders, leading to successful conservation/compatibility partnerships
focused on common objectives. These partnerships allow DoD to make clearcut
gains in achieving conservation and protecting the military mission by leveraging
funds to accomplish the protection of vital lands and habitats (see https://www.denix.osd.mil).
- Funding. The FY 2007 appropriation bill provided $30.1 million for the REPI
Program. Of those funds, the DoD provided the Army with $16.4 million for 17
individual projects. The Navy received $5.4 million for three separate projects.
The Marine Corps received $6.7 million for three projects while the Air Force received
$2.2 million for three projects.
- Scope of Authority. In FY 2006, the scope of the geographic applicability of the
buffer authority was expanded from the original "in the vicinity of a military installation"
to "in the vicinity of, or ecologically related to, a military installation
or military airspace." These changes allowed the DoD to work to protect land and
habitat of interest even if it is many miles distant from the "fence line" of any
Proceed to Chapter 4 - Too Close for Comfort: Encroachment on Military Lands